2018 WI 80
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2187-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Cross-Appellant,
v.
Kyle Lee Monahan,
Defendant-Appellant-Cross-Respondent-
Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 796, 899 N.W.2d 737
(2017 – unpublished)
OPINION FILED: June 28, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Lafayette
JUDGE: William D. Johnston
JUSTICES:
CONCURRED:
DISSENTED: R.G. BRADLEY, J., dissents, joined by
ABRAHAMSON, J., and A.W. BRADLEY, J. (opinion
filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-cross-respondent-petitioner,
there were briefs filed and an oral argument by Andrew R.
Hinkel, assistant state public defender.
For the plaintiff-respondent-cross-appellant, there was a
brief filed and an oral argument by Jeffrey J. Kassel, assistant
attorney general, with whom on the brief was Brad D. Schimel,
attorney general.
An amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Robert R. Henak and
Henak Law Office, S.C., Milwaukee.
2
2018 WI 80
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2187-CR
(L.C. No. 2012CF72)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Cross-Appellant,
v.
FILED
Kyle Lee Monahan, JUN 28, 2018
Defendant-Appellant-Cross-Respondent- Sheila T. Reiff
Clerk of Supreme Court
Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of an
unpublished, authored decision of the court of appeals affirming
the Lafayette County Circuit Court's1 judgment of conviction
1
The Honorable William D. Johnston, presiding.
No. 2014AP2187-CR
against Kyle Lee Monahan.2 State v. Monahan, No. 2014AP2187-CR,
unpublished slip op. (Wis. Ct. App. Apr. 27, 2017). Monahan
raises a single issue for our review: was the erroneous
exclusion of data from a portable GPS unit harmless?
¶2 We hold that the circuit court's erroneous exclusion
of the GPS data was harmless, and therefore affirm the decision
of the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶3 Monahan was involved in a single-vehicle crash that
took place on August 20, 2011, in Shullsburg, Wisconsin. As a
result of this crash, Monahan was seriously injured and his
girlfriend, R.C., who was also in the vehicle, was killed. The
State subsequently charged Monahan with three counts of criminal
conduct: (1) homicide by intoxicated use of a motor vehicle
contrary to Wis. Stat. § 940.09(1)(a) (2011-12)3; (2) homicide by
2
The court of appeals also reversed a circuit court order
granting Monahan's postconviction motion to relieve Monahan from
paying the DNA surcharge. State v. Monahan, No. 2014AP2187-CR,
unpublished slip op., ¶56 (Wis. Ct. App. Apr. 27, 2017).
Monahan states in his petition for review that he does not raise
this issue for our review. Accordingly, we do not consider it
further. See State v. Sulla, 2016 WI 46, ¶7 n.5, 369
Wis. 2d 225, 880 N.W.2d 659 (quoting Jankee v. Clark Cty., 2000
WI 64, ¶7, 235 Wis. 2d 700, 612 N.W.2d 297) ("If an issue is not
raised in the petition for review or in a cross petition, 'the
issue is not before us.'").
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2014AP2187-CR
intoxicated use of a vehicle contrary to § 940.09(1)(b)4; and (3)
homicide by negligent operation of a vehicle contrary to Wis.
Stat. § 940.10(1). The only factual dispute at trial was
whether it was Monahan or R.C. who was driving at the time of
the crash.
¶4 Monahan and R.C. met in early summer 2011 and started
dating shortly thereafter. R.C. worked as a nanny in the
Chicago suburb of Glenview, and she would often drive to
Shullsburg on weekends to visit Monahan. The crash occurred
during one such weekend.
¶5 R.C. arrived in Shullsburg at approximately 12:30 p.m.
on Saturday, August 20, 2011. The couple engaged in several
social activities during the course of that day. One such event
was a birthday party for Monahan's cousin, which was held at
that cousin's farm. Monahan and R.C. arrived at the farm in
R.C.'s Saab 9-5 station wagon at approximately 6:30 p.m.
Monahan and R.C. each had a couple drinks, but left
approximately 45 minutes later at about 7:15 p.m. because R.C.
4
Though count one and two have the same title, they are
based on different statutory provisions. Count one prohibits
"[c]aus[ing] the death of another by operation or handling of a
vehicle while under the influence of an intoxicant." Wis. Stat.
§ 940.09(1)(a). Count two prohibits "[c]aus[ing] the death of
another by the operation or handling of a vehicle while the
person has a prohibited alcohol concentration . . . ."
§ 940.09(1)(b). See also infra note 9.
3
No. 2014AP2187-CR
was exhausted from the day.5 Multiple eyewitnesses testified
that Monahan was in the passenger seat when he left in the Saab
with R.C.
¶6 After leaving the party, the Saab experienced a
catastrophic rollover event. Both Monahan and R.C. were ejected
from the vehicle. At the scene, emergency personnel asked
Monahan multiple times how many people were in the Saab in order
to ensure there were no others to be found (first responders
were especially concerned by an empty child seat they found in
the back of the Saab, which R.C. kept in her vehicle due to her
job as a nanny).
¶7 Multiple emergency personnel asked Monahan who was
driving. To each, he initially stated that he did not know, but
then stated that he probably was the driver.6 Throughout the
5
Between the time R.C. arrived in Shullsburg and the start
of the party, Monahan and R.C. had socialized at his home and a
local restaurant, and assisted his cousin in preparing for the
party.
6
While Monahan was still lying on the ground after the
crash, he told Shullsburg firefighter Timothy Corley "I was
driving, I guess."
After Monahan was placed on a backboard at the side of the
road, Lafayette County Sheriff's Deputy Paul Klang walked
towards him to question him. While walking towards Monahan,
Deputy Klang heard him say "that is the last time I will drink
and drive." When Deputy Klang questioned Monahan directly,
Monahan did not remember who was driving. After being informed
a female was also in the vehicle, Monahan said "I was probably
driving, then."
(continued)
4
No. 2014AP2187-CR
following several hours, Monahan's recollection of who had been
driving at the time of the crash continued to evolve, eventually
adhering to the conclusion that he, in fact, had been the
driver. While in a medical helicopter on the way to the
hospital, Monahan unequivocally stated that he was driving the
Saab. At the hospital, after undergoing emergency surgery,
Monahan——unprompted——asked for a pen and pad of paper and wrote
that he remembered the accident and that he had been driving.
However, on January 13, 2012, while signing a DNA sample consent
form, Monahan told Wisconsin State Trooper Ryan Zukowski, "[i]t
doesn't matter, you know, I wasn't driving." Ten months after
the accident, in July 2012, Monahan told Wisconsin State Trooper
Thomas Parrott "[i]t's not like I meant [it to] F'ing happen."
At trial, Monahan testified that he did not remember the
accident and did not remember ever admitting that he was the
driver.
¶8 The State and Monahan engaged their own respective
experts. Trooper Parrott prepared a report and testified on
After Monahan was moved to a gurney, while being treated by
EMS personnel, Lafayette County Sheriff's Deputy Michael Gorham
asked Monahan who was driving. Monahan responded, "I don't
know, I might have been." Shortly after this exchange, Deputy
Gorham returned with a digital recorder at the instruction of
Lafayette County Sheriff's Sergeant Darrell Morrissey. Deputy
Gorham again asked Monahan, "were you the driver?" Monahan
responded, "yeah, I guess." After informing Monahan that a
firefighter reported seeing Monahan driving the car out of
Shullsburg, Deputy Gorham asked Monahan "so you were the
driver?" Monahan responded "yeah." Gorham followed up "you
were?" Monahan again responded "yeah."
5
No. 2014AP2187-CR
behalf of the State. Paul Erdtmann, a Licensed Professional
Engineer, prepared a report and testified on behalf of Monahan.
¶9 Erdtmann and Trooper Parrott both came to some of the
same conclusions. Both experts agreed that the Saab was
traveling between approximately 87 and 100 miles per hour when
the crash sequence began. The crash sequence began when the
Saab's wheels left the pavement and fell onto the grassy
shoulder. After leaving the pavement, the Saab "furrowed"
towards the passenger's side——that is, the Saab moved sideways
through the grassy shoulder area such that the passenger's side
(and not the front) of the Saab was leading the path of travel.
The Saab went airborne after "tripping" on something on the
shoulder and rolled multiple times with the passenger's side
leading the rolls.
¶10 Both experts also agreed that at the time of the
crash, the passenger's side window was open, the sunroof was
open, the driver's side window was closed, neither occupant wore
their seatbelt, and both occupants were ejected from the Saab.
The experts further agreed that R.C. had been ejected from the
vehicle before Monahan based on each occupant's resting position
at the crash scene.
¶11 The two experts disagreed, however, as to the ultimate
conclusion to be drawn from the physical evidence. Trooper
Parrott concluded that Monahan was the driver. He based this
conclusion on a number of pieces of physical evidence. First,
the amount of dirt on both R.C. and Monahan's clothing indicated
that R.C. had been in the passenger's seat. R.C.'s clothes were
6
No. 2014AP2187-CR
covered in dirt; conversely, Monahan's clothes were relatively
clean. This indicated to Trooper Parrott that R.C. was in the
passenger's seat because the Saab would have kicked up
substantial amounts of dirt that would have entered the vehicle
through the open passenger's side window. Further, the
passenger's side windowsill had an area where the dirt was
rubbed off. Based on the amount of dirt on each occupant's
clothing, Trooper Parrott concluded that R.C. rubbed the dirt
off the windowsill while she exited the Saab.
¶12 Next, Trooper Parrott testified that the physics of
the crash showed that R.C. had been ejected through the open
passenger's side window, making it likely she had been seated in
the passenger's seat and not the driver's seat at the time of
the crash. He further testified that the positions of the
driver's seat and front passenger's seat in the Saab indicated
that Monahan was driving.
¶13 Finally, Trooper Parrott testified that the driver's
side airbag was covered in blood. Analysts at the State Crime
Lab found Monahan's DNA in this blood. Analysts found a second
DNA profile in the blood, but it was insufficient for
identification. This indicated that Monahan had to be in the
driver's seat, as his blood would not have covered the airbag
had he been in the passenger's seat.
¶14 On the other hand, Erdtmann testified that he could
not determine, to a reasonable degree of engineering certainty,
who had been driving at the time of the accident. He agreed
with Trooper Parrott that R.C. had been ejected first, but he
7
No. 2014AP2187-CR
concluded that R.C. could have been ejected through the open
sunroof and therefore could have been the driver. He testified
that it was equally likely that R.C. was ejected through the
sunroof from the driver's seat as it was that she was ejected
through the passenger's side window from the passenger's seat.
¶15 In regard to the seat positions, Erdtmann conducted a
test on an exemplar Saab that was the same model and year as
R.C.'s. He placed the seats in the exact positions at which
they were found after the crash. He then found individuals to
serve as models who were approximately the same height and
weight as Monahan and R.C. The R.C. model was able to reach the
pedals and steering wheel from the driver's seat with no
"physical constraints." The Monahan model was able to
"comfortably" sit in the passenger's seat. On rebuttal, the
State offered the testimony of R.C.'s mother, who testified that
R.C. "would always have her seat as close up to the steering
wheel as she possibly could" and that the R.C. model was "much
farther back than [R.C.] would have been."
¶16 Erdtmann also testified that he inferred that the
second DNA profile found on the driver's side airbag was R.C.'s.
He testified that, given the jostling that occurred inside the
Saab while it was rolling, the DNA was inconclusive as to seat
position——meaning that Monahan's DNA could have fallen on the
driver's side airbag from the passenger's seat when the Saab was
rolling.
¶17 It is against this factual backdrop that we come to
the evidentiary crux of this matter——the erroneously excluded
8
No. 2014AP2187-CR
GPS data. R.C. owned a portable GPS unit that she kept in the
Saab. The GPS unit recorded timestamped coordinates when it was
powered on. This allowed both Erdtmann and Trooper Parrott to
recreate the Saab's movements and calculate its speed on the
date of the accident.
¶18 The data extracted from the GPS unit for the trip
commencing at approximately 7:15 p.m. on August 20, 2011, from
the farm to the crash site showed that the Saab was driving at a
high rate of speed——sometimes in excess of 100 miles per hour——
after leaving the farm. It also showed that after leaving the
farm, the Saab stopped for approximately two minutes in downtown
Shullsburg before resuming the trip. Neither party presented
any direct evidence as to what happened during this stop. After
resuming the trip, the Saab again traveled at a high rate of
speed——again sometimes exceeding 100 miles per hour——during the
time period between the two-minute stop and the crash.
¶19 Both the State and Monahan filed pretrial motions
regarding the GPS data for the portion of the trip between the
farm and the two-minute stop. Monahan moved for its admission,
intending to use the GPS data of the entire trip between the
farm and the crash to show that the same person was likely
driving both before and after the stop in Shullsburg. He based
this argument on the fact that the GPS data revealed similar
driving patterns both before and after the stop. He reasoned
that combined with eyewitness testimony that R.C. was driving
when the pair left the farm, the jury could reasonably conclude
that R.C. was driving at the time of the crash.
9
No. 2014AP2187-CR
¶20 The State opposed admission of the GPS data detailing
the portion of the trip between the farm and Shullsburg, arguing
that only the GPS data of the segment between Shullsburg and the
crash should be admitted. The State argued that admitting the
GPS data relating to the trip between the farm and Shullsburg
would constitute other acts evidence used to show propensity.
See Wis. Stat. § 904.04(2).7 The State argued that, if Monahan's
motion was granted, the GPS data would be improperly used to
show that R.C. had a propensity for driving above the speed
limit, and thus must have been driving at the time of the crash.
See id.
¶21 The circuit court denied Monahan's motion and admitted
only the GPS data relating to the period of time between the
7
Wisconsin Stat. § 904.04(2) states, in relevant part:
"[E]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that the
person acted in conformity therewith."
10
No. 2014AP2187-CR
two-minute stop in Shullsburg and the crash.8 This ruling
reflected the circuit court's determination that the GPS data
between the farm and two-minute stop constituted other acts
evidence offered to show R.C.'s propensity for driving fast. In
the circuit court's view, the continuum of relevant events
leading to the crash started at the two-minute stop, not the
farm.
¶22 Although the GPS data relating to the time period
between the two-minute stop and the crash was admitted, it did
not become the centerpiece of either party's case. In fact,
after its introduction into evidence, it was not discussed again
8
The pretrial motions filed by Monahan and the State also
addressed GPS data that would show the Saab traveled at a high
rate of speed on the way to the farm; a period during which the
parties agree R.C. was driving. The circuit court excluded this
GPS data for the same reasons it excluded the GPS data of the
trip between the farm and Shullsburg. The extent to which
Monahan appeals exclusion of the trip to the farm is unclear——at
various points in briefing, he appears to challenge only the
exclusion of the trip from the farm to Shullsburg, but at other
points, he appears to also challenge the exclusion of the trip
to the farm. The scope of the State's confession of error is
similarly unclear. In its brief to the court of appeals——the
first point at which the State confessed error in this case——the
State conceded error only as to the trip between the farm and
Shullsburg. However, other areas of briefing and oral arguments
to this court indicate that the State may also confess error as
to the trip to the farm. Neither party offers analysis of the
trip to the farm separate from its analysis of the trip from the
farm to Shullsburg.
We determine that separately addressing the exclusion of
the GPS data relating to the trip to the farm is unnecessary
because our analysis and holding would remain the same even if
we assumed error regarding that trip.
11
No. 2014AP2187-CR
until the State's closing argument. In closing argument, the
State asserted that it did not "make sense that a young girl who
doesn't know the area is driving on some rural road and driving,
no less, after she'd been drinking[,] and at speeds of 40 to 50
miles per hour over the speed limit[.] That doesn't make
sense."
¶23 The jury returned verdicts of guilty as to all three
counts.9
¶24 Monahan appealed, arguing that the circuit court
erroneously excluded the GPS data relating to the time period
between the farm and the two-minute stop in Shullsburg. The
State conceded——and the court of appeals accepted for purposes
of appeal——that the circuit court's exclusion of the GPS data
9
The circuit court dismissed count two by operation of
Wis. Stat. § 940.09(1m), which states in relevant part: "[a]
person may be charged with and a prosecutor may proceed upon an
information based upon a violation of any combination of sub.
(1)(a) . . . or (b) . . . for acts arising out of the same
incident or occurrence. . . . If the person is found guilty of
more than one of the crimes so charged for acts arising out of
the same incident or occurrence, there shall be a single
conviction for purposes of sentencing . . . ." The circuit
court dismissed count three by operation of Wis. Stat.
§ 939.66(2), which states, in relevant part: "[u]pon
prosecution for a crime, the actor may be conviction of either
the crime charged or an included crime, but not both. An
included crime may be . . . [a] crime which is a less serious
type of criminal homicide than the one charged."
12
No. 2014AP2187-CR
was erroneous.10 Monahan, 2014AP2187-CR, ¶2. However, the court
of appeals concluded that the error was harmless. Id. In
explaining its conclusion, the court of appeals emphasized the
strength of the State's case. Id., ¶17.
¶25 First, the court of appeals noted that Monahan's many
admissions that he had been driving at the time the accident
provided strong evidence for the State. Id., ¶¶19-26.
¶26 Next, the court of appeals noted that Monahan had
never substantially contradicted Trooper Parrott's testimony
that Monahan had been the driver. Id., ¶33. The court observed
that Erdtmann testified that "it was possible that either
Monahan or R.C. was the driver." Id, ¶37. It further observed
that Erdtmann's testimony regarding his exemplar of the
vehicle's seats and his conclusions therefrom had been rebutted
by the testimony of R.C.'s mother, which would have allowed the
jury to accept Trooper Parrott's reconstruction. Id., ¶¶38-39.
¶27 Finally, the court of appeals chastised the State for
exploiting the excluded GPS data in closing argument. Id., ¶29.
However, it concluded that the State's discussion was harmless
because its argument concerning the excluded evidence comprised
10
The State agreed with Monahan that "[t]he vehicle's speed
after it left the cousin's residence was not other acts
evidence[,] but part of the continuum of facts relevant to the
crime" pursuant to State v. Dukes, 2007 WI App 175, ¶28, 303
Wis. 2d 208, 736 N.W.2d 515. The court of appeals did not
"weigh in on whether the [circuit] court erroneously excluded
the GPS data," but rather accepted the State's concession for
purposes of the appeal. Monahan, 2014AP2187-CR, ¶2.
13
No. 2014AP2187-CR
an aggregate of five sentences out of approximately 70
transcript pages of closing argument. Id.
¶28 The court of appeals determined that "even if the jury
heard the excluded GPS data evidence, the GPS data would have
paled in comparison to the strong evidence that Monahan was
driving at the time of the accident." Id., ¶40. Consequently,
the court of appeals saw "no reason to think that, in light of
all the evidence that Monahan was the driver, admission of the
excluded evidence would have changed the outcome of this case."
Id.
¶29 Monahan petitioned this court for review, which we
granted on November 13, 2017.
II. STANDARD OF REVIEW
¶30 Circuit court evidentiary decisions are reviewed for
an erroneous exercise of discretion. State v. Hunt, 2014 WI
102, ¶20, 360 Wis. 2d 576, 851 N.W.2d 434. However, in this
case, the State concedes that the circuit court erroneously
exercised its discretion in excluding the GPS data from the farm
to the two-minute stop.11
¶31 Whether a circuit court's erroneous exclusion of
evidence is harmless is a question of law we review de novo.
Id., ¶21.
11
We are not bound by a party's concession of law. State
v. Anderson, 2014 WI 93, ¶19, 357 Wis. 2d 337, 851 N.W.2d 760.
For purposes of this opinion, however, we assume without
deciding that the circuit court's exclusion of the GPS data was
erroneous.
14
No. 2014AP2187-CR
III. ANALYSIS
¶32 We first set forth and discuss the harmless error
rule. We next apply the rule to Monahan. We then hold that the
circuit court's erroneous exclusion of the GPS data was
harmless, and consequently affirm the decision of the court of
appeals.
A. The Harmless Error Rule
¶33 An erroneous evidentiary ruling is reversible only if
"a substantial right of the party is affected." Wis. Stat.
§ 901.03(1). We construe this to mean that an error is harmless
if the party benefitted by the error shows "beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained." Hunt, 360 Wis. 2d 576, ¶26 (quoting State v.
Harris, 2008 WI 15, ¶42, 307 Wis. 2d 555, 745 N.W.2d 397). In
the present case, the State has the burden to prove "beyond a
reasonable doubt that a rational jury would have found [Monahan]
guilty absent the error." Id. (quoting State v. Harvey, 2002 WI
93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189).
¶34 The harmless error rule originated in response to the
perception that appellate courts were "applying a rule
approximating automatic reversal" when trial error was found.
John M. Greabe, The Riddle of Harmless Error Revisited, 54 Hous.
L. Rev. 59, 67 (2016); see also 7 Wayne R. LaFave, et al., Crim.
Proc. § 27.6(a) (4th ed. 2017). The United States Supreme Court
aptly described the problem: "So great was the threat of
reversal, in many jurisdictions, that criminal trial became a
game for sowing reversible error in the record, only to have
15
No. 2014AP2187-CR
repeated the same matching of wits when a new trial had been
thus obtained." Kotteakos v. U.S., 328 U.S. 750, 759 (1946).
The goal of the harmless error rule is to "inject reasoned
judgment . . . into appellate review" to ensure retrials occur
only when the error actually affected the original trial. Id.
at 759-60; see also Harry T. Edwards, To Err is Human, but not
Always Harmless: When Should Legal Error be Tolerated?, 70
N.Y.U. L. Rev. 1167, 1174 (1995).
¶35 We use several non-exclusive factors to aid our
application of the harmless error rule in the evidentiary
context: (1) the frequency of the error; (2) the importance of
the erroneously included or excluded evidence to the
prosecution's or defense's case; (3) the presence or absence of
evidence corroborating or contradicting the erroneously included
or excluded evidence; (4) whether erroneously excluded evidence
merely duplicates untainted evidence; (5) the nature of the
defense; (6) the nature of the State's case; and (7) the overall
strength of the State's case. State v. Martin, 2012 WI 96, ¶46,
343 Wis. 2d 278, 816 N.W.2d 270; State v. Norman, 2003 WI 72,
¶48, 262 Wis. 2d 506, 664 N.W.2d 97; see also Hunt, 360 Wis. 2d
576, ¶27; State v. Nelson, 2014 WI 70, ¶46, 355 Wis. 2d 722, 849
N.W.2d 317.
B. Application to Monahan
1. Frequency of the error
¶36 This factor requires us to consider whether the error
scarcely appeared in the record or pervaded it. Martin, 343
Wis. 2d 278, ¶47. An error that pervades the record is more
16
No. 2014AP2187-CR
likely to be harmful than an error that appears only a few
times, though an error may be so prejudicial that reversal is
required despite appearing in the record only once. See id.;
see also United States v. Impson, 531 F.2d 274, 278 (5th Cir.
1976).
¶37 In this case, the error manifested in the record once.
The GPS data was not a centerpiece of the State's case, but
rather was mentioned only briefly in closing argument, when the
State argued that it did not make sense that a driver who was
unfamiliar with the area would operate a vehicle at the speed
the Saab was traveling at the time of the crash. While the
excluded GPS data would have undoubtedly undercut this argument
because it would have allowed the jury to conclude that R.C.
had, in fact, been operating the Saab at a high rate of speed
over (presumptively) unfamiliar roadways, the argument was not
central to the State's theory of the case. The State's theory
of the case rested on Trooper Parrott's crash reconstruction;
the argument that R.C. would not have driven so recklessly given
her unfamiliarity with the area constituted a miniscule
percentage of a 70-page closing argument transcript.12
12
The court of appeals considered five sentences in the
State's closing argument to be objectionable. Monahan,
2014AP2187-CR, ¶29; see also infra, ¶27. Depending on how one
classifies certain sentences in the State's closing argument,
the objectionable portion of the State's closing argument could
constitute up to three paragraphs or 24 lines of the transcript.
See dissent, ¶3. This would add up to approximately one full
page of transcript (the transcript pages from closing arguments
contain 25 lines of text each) out of 70 pages of closing
arguments, or approximately 1.4 percent.
17
No. 2014AP2187-CR
¶38 This is in contrast to Martin, where erroneously-
admitted testimony constituted the bulk of the State's case.
Id. The testimony was "discussed at length in both the State's
opening statement and closing argument." Id. The error was
repeated often in the record and was "the backbone of the
State's argument." Id. The extent to which the State relied
upon the excluded GPS data in the present case simply did not
rise anywhere close to that level of repetition, duration, or
extent. We conclude that this factor weighs in favor of the
State.
2. Importance of the erroneously excluded evidence
¶39 This factor considers the extent to which the excluded
evidence impacted the verdict. Hunt, 360 Wis. 2d 576, ¶29;
Nelson, 355 Wis. 2d 722, ¶47; see also Martin, 343 Wis. 2d 278,
¶51. Exclusion of evidence that would go to the foundation of
the verdict is less likely to be harmless than exclusion of
evidence that would have little impact on the verdict. See
Martin, 343 Wis. 2d 278, ¶51.
¶40 The excluded GPS data did not go to the foundation of
the verdict. Rather, the excluded GPS data is direct evidence
of a fact that is not of consequence: how fast the Saab was
traveling between the farm and the two-minute stop. Given the
other evidence presented——and emphasized——by the parties, the
GPS data would have been largely inconsequential to the verdict.
¶41 Hunt, while factually disparate, is instructive on
this question. 360 Wis. 2d 576. In that case, the defendant,
Hunt, was convicted of causing a child under 13 to view or
18
No. 2014AP2187-CR
listen to sexual activity based on an incident in which Hunt
showed his adopted daughter a video of sexual intercourse. Id.,
¶¶1-2, 4. At the preliminary hearing, the victim testified that
Hunt referred to the video as stuff that he received from a
certain friend, Venske. Id., ¶5. Hunt admitted that the victim
may have seen an image of a testicular hernia sent by Venske,
but denied ever showing the victim a video of sexual
intercourse. Id., ¶8. Hunt argued that the victim embellished
the story due to an ongoing custody dispute. Id., ¶9.
¶42 Consistent with that defense, Hunt proffered testimony
from Venske that he sent Hunt an image of a testicular hernia,
but never sent Hunt a video of sexual intercourse. Id., ¶12.
The circuit court excluded Venske's testimony. Id., ¶13. We
held that the circuit court erroneously exercised its discretion
when it excluded Venske's testimony because the testimony would
have corroborated Hunt's testimony. Id., ¶25. We held the
error to be harmless, however, because the source of the
sexually explicit content was not an element of the crime. Id.,
¶30. Stated differently, the excluded testimony did not go to
the foundation of the verdict because it would have demonstrated
a fact that was irrelevant to the crime charged. See id., ¶34.
¶43 Similarly, in the present case, the excluded GPS data
would have bolstered Monahan's contention that R.C. may have
been driving the Saab at the time it crashed. For this reason,
excluding that portion of the GPS data was error. See id., ¶29.
Establishing that the evidence was admissible does not, of
course, answer the harmless error question. Id. Though the
19
No. 2014AP2187-CR
excluded GPS data should have been admitted, it nonetheless did
not impact the verdict because it bears little relation to the
elements of homicide by intoxicated use of vehicle. See Wis.
Stat. § 940.09(1)(a).13 Because neither the speed of the Saab
between the farm and two-minute stop, nor who was driving it
during that time period, were "required element[s] of the
State's case, the value of [the excluded GPS data] lay solely in
its potential to corroborate [Monahan]'s version of events."
Hunt, 360 Wis. 2d 576, ¶34.
¶44 Thus, while the excluded GPS data may have added some
credibility to Monahan's defense, it was not a fact that was
important to the verdict. Accordingly, we conclude that this
factor weighs in favor of the State.
3. The presence or absence of evidence corroborating or
contradicting the erroneously excluded evidence
¶45 This factor is closely related to the preceding one,
the importance of the erroneously excluded evidence. Hunt, 360
Wis. 2d 576, ¶30. If other evidence demonstrates what the
excluded GPS data was offered to show, or if the excluded GPS
data would not contradict any of the State's evidence, then its
erroneous exclusion is more likely harmless. See Martin, 343
Wis. 2d 278, ¶54.
13
A person commits homicide by intoxicated use of a vehicle
if he "[1] causes the death of another [2] by the operation or
handling of a vehicle [3] while under the influence of an
intoxicant." Wis. Stat. § 940.09(1)(a).
20
No. 2014AP2187-CR
¶46 The excluded GPS data was neither corroborated nor
contradicted because no other evidence was admitted to establish
the speed of the vehicle between the farm and the two-minute
stop. Again, Hunt is helpful to our understanding of the
application of this factor. 360 Wis. 2d 576. In Hunt, Venske's
excluded testimony did not contradict any of the State's
evidence because the State did not offer any evidence of the
source of the sexually explicit video. Id., ¶33. In holding
the error harmless, we reasoned that "the excluded
evidence . . . would not have served to weaken the State's case
on the issue of where Hunt obtained the sexually explicit video,
because the State never alleged it was sent by Venske." Id. A
similar reasoning applies here: the excluded GPS data would not
have served to weaken the State's case on the issue of how fast
the Saab was traveling between the farm and the two-minute stop
because the State never alleged that the Saab was speeding
during that segment. Consequently, this factor weighs in favor
of the State.
4. Whether the erroneously excluded evidence duplicates
untainted evidence.
¶47 This factor reflects our understanding that the error
is more likely harmless if the excluded evidence would serve
only to duplicate admitted evidence. Nelson, 355 Wis. 2d 722,
¶50. Conversely, if the erroneously excluded evidence would
have been the only evidence to support a factual finding by the
jury, then the error is more likely prejudicial. See Martin,
343 Wis. 2d 278, ¶57.
21
No. 2014AP2187-CR
¶48 Literal application of this factor leads us to observe
that the GPS data does not duplicate any evidence because no
other evidence regarding the speed of the Saab between the farm
and two-minute stop was offered. The State did not offer any
evidence as to either how fast the Saab was traveling or who was
driving it between the farm and two-minute stop. Conversely,
Monahan offered evidence in the form of eyewitness testimony
that R.C. was driving when the couple left the farm. The
excluded GPS data, had it been admitted, would have constituted
circumstantial evidence that the same person was driving both
before and after the two-minute stop. While the excluded GPS
data would have fractionally overlapped with the eyewitness
testimony, we cannot say that the erroneously excluded GPS data
would have duplicated the eyewitness testimony——or any other
untainted evidence. The result of our consideration is that
this factor weighs in favor of Monahan.
5. The nature of the defense
¶49 If the erroneously excluded evidence closely fits the
defense theory of the case, then its exclusion is more likely
prejudicial. See State v. Deadwiller, 2013 WI 75, ¶43, 350
Wis. 2d 138, 834 N.W.2d 362; see also Martin, 343 Wis. 2d 278,
¶59. Conversely, if the erroneously excluded evidence would not
have furthered the defense, its exclusion is more likely
harmless. Nelson, 355 Wis. 2d 722, ¶49.
¶50 Monahan's defense was that either he or R.C. could
have been driving at the time of the crash. Stated otherwise,
Monahan argues that the jury could not have found beyond a
22
No. 2014AP2187-CR
reasonable doubt that Monahan was driving at the time of the
crash. The excluded GPS data could have raised an inference
that the same person was driving both before and after the two-
minute stop. When combined with the eyewitness testimony that
R.C. was driving at the time the couple left the farm, this
inference could have supported a jury determination that R.C.
was driving at the time of the crash.
¶51 Although the weight, if any, the jury would have given
to such an inference is (by definition) impossible to know, it
is clear that the excluded evidence would have been
complementary to the nature of the defense. Accordingly, this
factor weighs in favor of Monahan.
6. The nature of the State's case
¶52 If the erroneously excluded evidence is consistent
with the State's case, then its exclusion is more likely
harmless. See Martin, 343 Wis. 2d 278, ¶60.
¶53 The GPS data is irrelevant to the State's case. The
State focused its evidence on who was driving at the time of the
crash; its theory of the case is compatible with either Monahan
or R.C. driving between the farm and the two-minute stop. The
State's evidence that Monahan was driving at the time of the
crash——Trooper Parrott's crash reconstruction, Monahan's
admissions, and the DNA found on the driver's side airbag——are
not affected by who was driving between the farm and the two-
minute stop. The GPS data would have neither bolstered nor
undercut the State's case had it been admitted because the
State's evidence was consistent with either Monahan driving the
23
No. 2014AP2187-CR
whole way or Monahan and R.C. switching seats during the two-
minute stop.
¶54 Because the GPS data was not inconsistent with the
State's case, this factor weighs in favor of the State.
7. The overall strength of the State's case
¶55 If the State's case was strong notwithstanding the
erroneous exclusion of the GPS data, then the error is more
likely harmless. Hunt, 360 Wis. 2d 576, ¶35. Conversely, if
the State relied heavily on the exclusion of the GPS data, then
the error is more likely to be prejudicial. Martin, 343
Wis. 2d 278, ¶62.
¶56 We first address Monahan's complaint that considering
the strength of the State's case improperly transforms harmless
error analysis into sufficiency-of-the-evidence analysis. We
begin by noting that the strength of the State's case has long
been considered an appropriate——and important——factor in
harmless error analysis. E.g., Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986) ("These factors include . . . ,of course,
the overall strength of the prosecution's case."); United States
v. Wilson, 134 F.3d 855, 867 (7th Cir. 1998) ("[Van Arsdell]
recognize[ed] that, 'of course,' an important factor to consider
is 'the overall strength of the prosecution's case.'"); State v.
Fishnick, 127 Wis. 2d 247, 267, 378 N.W.2d 272 (1985); State v.
Drusch, 139 Wis. 2d 312, 324 n.1, 407 N.W.2d 328 (Ct. App.
1987). Second, we understand that courts cannot properly answer
the core question——whether the State proved "beyond a reasonable
doubt that the error complained of did not contribute to the
24
No. 2014AP2187-CR
verdict obtained"——without considering the strength of the
State's case. See United States v. Littrell, 439 F.3d 875, 883
(8th Cir. 2006). Finally, we note that error is less likely to
have a "substantial influence" on the verdict where the State
presented overwhelming evidence of guilt. United States v.
Lane, 474 U.S. 438, 450 (1986).
¶57 For these reasons, consideration of the strength of
the State's case has been——and remains——a proper and useful
factor in evaluating whether a circuit court's error was
harmless.
¶58 This factor cuts decisively in favor of the State
because the State's case was strong, and would have remained
strong even if the excluded GPS data had been admitted. First
and foremost, Monahan's numerous admissions that he was driving
provide substantial evidence of his guilt. He told Shullsburg
firefighter Timothy Corley "I was driving, I guess" while lying
in the cornfield. He then said "that is the last time I will
drink and drive" within earshot of Deputy Klang. When Deputy
Klang told Monahan that a female was also in the vehicle,
Monahan said "I was probably driving, then." Once on the
gurney, Monahan responded "yeah" when Deputy Gorham asked him
"so you were the driver." While in the medical helicopter en
route to the hospital, Monahan again unequivocally admitted to
driving the Saab. While at the hospital, he again admitted to
being the driver. He wrote that he remembered the crash and
that he was driving. At the time of this writing, the attending
nurse described him as "neurologically . . . intact." Finally,
25
No. 2014AP2187-CR
ten months after the accident, Monahan told Trooper Parrott
"[i]t's not like I meant [it to] F'ing happen."
¶59 Even if the jury had discounted all of Monahan's
admissions, Trooper Parrott's crash reconstruction provided
compelling evidence for the State. Trooper Parrott testified
unequivocally that all of the physical evidence pointed to
Monahan as the driver. Ertdmann, on the other hand, did not
contradict Trooper Parrott's conclusion. In fact, Erdtmann
concluded that Monahan could have been the driver. Erdtmann
merely disagreed as to whether that was the only reasonable
conclusion one could draw from the physical evidence.
¶60 Moreover, the physical evidence supported the State's
assertion that Monahan was the driver. The seat positions——
coupled with the testimony of R.C.'s mother that the driver's
seat was found "much farther back than [R.C.] would have been"——
indicated that Monahan was driving. The position of the bodies
at the crash scene, the closed driver’s side window, and the
open passenger's side window indicated that R.C. was ejected
first and from the passenger's seat. The dirt patterns on
R.C.'s clothing——and the relative lack of dirt on Monahan's
clothing——indicated that R.C. was in the passenger's seat, next
to the open window.
¶61 All of these factors lead us to conclude that the
State's case was very strong——and would have remained so even if
the excluded GPS data had been admitted into evidence. Because
of the strength of the State's case, we are not surprised that
the jury came to the only reasonable conclusion: Monahan was
26
No. 2014AP2187-CR
driving at the time of the crash; this factor weighs in favor of
the State.
***
¶62 Applying the relevant circumstances of Monahan's case
to these factors leads to the conclusion that the erroneous
exclusion of the GPS data was harmless; that is, the State has
met its burden to prove "beyond a reasonable doubt that a
rational jury would have found [Monahan] guilty absent the
error." Hunt, 360 Wis. 2d 576, ¶26 (quoting Harvey, 254
Wis. 2d 442, ¶49).
¶63 Though we utilize the seven factors to aid in our
analysis, harmless error is not subject to a precise
mathematical formula. See State v. Bolstad, 124 Wis. 2d 576,
589-90, 370 N.W.2d 257 (1985); see also State v. Anthony, 2015
WI 20, ¶104, 361 Wis. 2d 116, 860 N.W.2d 10; State v. Grant, 139
Wis. 2d 45, 77, 406 N.W.2d 744 (1987) (Day, J., concurring)
(describing the underlying rationale of the harmless error test
to be "eliminating prejudicial error but not becoming bogged
down in endless formulas for determining harmless error.").
¶64 Factors four and five weigh in favor of Monahan, as
the excluded GPS data would have bolstered Monahan's theory of
defense that R.C. was driving. Supra, ¶¶47-51. However, it
would have done so by demonstrating a fact that was not
necessary for conviction. Hunt, 360 Wis. 2d 576, ¶34; see also
supra, ¶46.
¶65 Though the excluded GPS data would have bolstered
Monahan's theory of defense, the factors weighing in favor of
27
No. 2014AP2187-CR
the State——especially the final factor, the strength of the
State's case——"tip the scales in support of harmless error."
Anthony, 361 Wis. 2d 116, ¶104. As in Hunt, the State's case
did not hinge on establishing who was driving the Saab, and how
fast it was traveling, between the farm and two-minute stop.
See Hunt, 360 Wis. 2d 576, ¶36. Rather, the strength of the
State's case rested largely on Monahan's five admissions that he
was driving at the time of the accident, Trooper Parrott's crash
reconstruction testimony, and the DNA evidence. See id. The
State never raised at trial the issue of who was driving the
Saab between the farm and two-minute stop, nor how fast it was
traveling during that segment, in proving the essential elements
of the crime for which Monahan was convicted. See id. We agree
with the court of appeals that "the [excluded] GPS data would
have paled in comparison to the strong evidence that Monahan was
driving at the time of the accident." Monahan, 2014AP2187-CR,
¶40.
¶66 Based on the foregoing, we conclude that "it is beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained." Hunt, 360 Wis. 2d 576, ¶26
(quoting Harris, 307 Wis. 2d 555, ¶42).
IV. CONCLUSION
¶67 We hold that the circuit court's erroneous exclusion
of the GPS data was harmless, and therefore affirm the decision
of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
28
No. 2014AP2187-CR.rgb
¶68 REBECCA GRASSL BRADLEY, J. (dissenting). In this
court, everyone agrees the circuit court erred in excluding the
GPS data, which revealed the excessive speeds R.C.'s car
traveled both on the way to the party and on the way from the
party to the stop in Shullsburg. The only question is whether
this erroneous exclusion of evidence was harmless. It was not.
If the jury had heard that R.C.'s car grossly exceeded the speed
limit both on the way to the party and while traveling from the
party to Shullsburg——when independent witnesses testified that
R.C. drove away from the party——the State could not have made
the same closing argument and Monahan would have had evidence to
support his defense. The excluded evidence plus the State's
argument——unrefuted at trial as a result of the erroneous
evidentiary ruling——that R.C. never would have driven that fast
on unfamiliar roads, create reasonable doubt as to whether a
rational jury would have found Monahan guilty absent the error.
Accordingly, I conclude the error was not harmless and
respectfully dissent.
I
¶69 There were no eyewitnesses to this single car
accident. Only two people actually knew what happened. One of
them did not survive the accident; the other, Monahan, testified
he does not remember anything between the time he and R.C. left
the party and the time he woke up in the hospital. The car's
GPS unit does give some information about the car's speed and
location on the day of the accident. The GPS data allowed
Monahan's accident reconstruction expert to calculate how fast
1
No. 2014AP2187-CR.rgb
the car was driven both on the way to the party and on the way
from the party to Shullsburg. The GPS data also showed a two-
minute stop in Shullsburg. Finally, the data allowed both
Monahan's and the State's accident reconstructionists to
calculate the speed the car was traveling after the two-minute
stop until the crash. The speed calculations estimated the
car's speed on the way to the party at 79-93 miles per hour.
The car's estimated speed during the segment from the party to
the Shullsburg stop was 82-105 miles per hour. After the brief
stop in Shullsburg, the car's speed reached 97-120 miles per
hour during the trip from Shullsburg until the crash.1 The GPS
unit listed the "max speed" the car had traveled as 123 miles
per hour. The only estimated speed evidence the jury heard was
that at the time of the crash, the car's speed was 87-98 miles
per hour. We also know that both occupants were ejected from
the car during the crash and neither Monahan nor R.C. were
wearing seatbelts. The sunroof and the front passenger side
window were open. Finally, it is undisputed that both Monahan
and R.C. had been drinking. Both had blood alcohol content
above the legal limit.
¶70 The State's entire case depended on proving that
Monahan was in fact driving at the time R.C.'s car crashed.
There were no eyewitnesses to the crash itself and no eyewitness
1
These numbers come from Monahan's expert engineer's
report. The State's expert calculated only the speed at the
time of the crash, and told the jury the car was traveling at
87-98 miles per hour.
2
No. 2014AP2187-CR.rgb
put Monahan behind the wheel. To prove its case, the State
presented testimony from State Trooper Thomas Parrott who
prepared a reconstruction of the accident. Parrott testified he
believed Monahan was driving based on where Monahan's and R.C.'s
bodies landed after ejection. Parrott believed R.C. was ejected
through the open passenger window before the airbags deployed.
The State also introduced evidence showing that the driver's
seat was positioned four inches farther back than the
passenger's seat. Using this information, together with the
fact that Monahan was taller than R.C., the State argued Monahan
was the driver at the time of the crash. Additionally, the
State relied on evidence showing the driver's side airbag had a
major and a minor contributor of DNA and that the major
contributor was Monahan. The State also introduced Monahan's
numerous statements. In some of these statements, Monahan said
he was the driver. The only GPS evidence the circuit court
admitted showed that the car stopped for just over two-minutes
in Shullsburg, and Parrott testified that he estimated the car's
speed at the time of the crash to be between 87-98 miles per
hour based upon the GPS data. The prosecutor seized upon this
speed evidence to argue during closing:
[Monahan] testified he knew the hills, knew the
curves, knew the terrain of that road. Why would a
young woman from Maine who's living in Chicago, who
doesn't know the roads, who by all accounts hadn't
been on that road and if -- had been maybe once or
twice, why would she be driving? She didn't know the
area.
The prosecutor further emphasized this point by arguing:
3
No. 2014AP2187-CR.rgb
[R.C.] didn't know her way around. So using your
common sense, you need to ask yourself, does it make
sense that a young girl who doesn't know the area, is
driving on some rural road and driving, no less, after
she'd been drinking and at speeds of 40 to 50 miles
per hour over the speed limit? That doesn't make
sense . . . . Using your common sense, that tells you
it's the defendant behind the wheel.
And, later, the State emphasized again:
If it's [R.C.] who was driving that night, again we'd
have to believe she's driving on that rural country
road in a place she's not familiar with on a road
she's not familiar with. Despite the fact that she's
not familiar with that road, we have to believe that
she's traveling -- after having some drinks, traveling
40 to 50 miles per hour over the speed limit on a road
she has no experience or familiarity with.
¶71 Without the pre-Shullsburg stop GPS speed calculations
in evidence, Monahan could not refute the State's "common sense"
and persuasive argument. Now, on appeal, the State concedes
that excluding the pre-Shullsburg stop GPS-calculated speeds was
in fact error, but it asserts the exclusion was harmless error.
The majority agrees with the State that this error was harmless—
—that it had no impact on the verdict and even if the jury heard
the complete GPS evidence, the jury still would have convicted
Monahan. In reaching its harmless error conclusion, the
majority improperly applied the harmless error standard.
Applying the harmless error standard correctly, I conclude the
exclusion of the GPS evidence was not harmless and I would
reverse the decision of the court of appeals and remand for a
new trial.
II
¶72 Before Congress adopted the harmless error rule in
1919, criminal cases were retried with some regularity when an
4
No. 2014AP2187-CR.rgb
error occurred during the trial, regardless of whether the error
was minimal or material. See, e.g., Kotteakos v. United States,
328 U.S. 750, 759 (1946) ("[Appellate courts] tower above the
trials of criminal cases as impregnable citadels of
technicality" (quoting Marcus A. Kavanagh, Improvement of
Administration of Criminal Justice by Exercise of Judicial Power
11 A.B.A.J. 217, 222) (1925)). The federal harmless error rule
was codified "to prevent matters concerned with the mere
etiquette of trials and with the formalities and minutiae of
procedure from touching the merits of a verdict." Bruno v.
U.S., 308 U.S. 287, 294 (1939). The rule, versions of which
have been enacted in Wisconsin and other states, "block[s]
setting aside convictions for small errors or defects that have
little, if any, likelihood of having changed the result of the
trial." Chapman v. California, 386 U.S. 18, 22 (1967). The
error in Monahan's trial cannot be fairly characterized as "mere
etiquette" nor minutiae of procedure. The error precluded him
from presenting his defense with respect to the main issue at
trial: who was driving the car.
¶73 Whether an error is harmless beyond a reasonable doubt
is a question of law. See State v. Nelson, 2014 WI 70, ¶18, 355
Wis. 2d 722, 849 N.W.2d 317. The harmless error test is easily
defined but difficult to apply. The test requires the State to
prove "beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained" by showing "that a
rational jury would have found the defendant guilty absent the
error." State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851
5
No. 2014AP2187-CR.rgb
N.W.2d 434. The reviewing court looks at the effect the error
had on the verdict. Id. In applying the harmless error test,
we consider several factors. As relevant here, the court
examines: (1) the importance of the erroneously excluded
evidence; (2) whether there is evidence corroborating or
contradicting the erroneously excluded evidence; (3) "the nature
of the defense"; (4) "the nature of the State's case"; and (5)
"the overall strength of the State's case." Id., ¶27.2
¶74 Factor (1), the importance of the excluded evidence,
cannot be disputed, particularly given the State's exploitation
of it during closing argument. Monahan's only defense was that
he was not driving at the time of this accident. The excluded
evidence would have supported that defense. If all the GPS
evidence had been admitted, the jury would have learned R.C.
drove her car excessively fast. It would have shown that
despite her unfamiliarity with the area, she drove far above the
posted 55 miles per hour speed limit. Applying factor (1)
demonstrates the harmfulness of excluding the GPS data.
2
The majority considers two additional factors——frequency
of the error and whether the excluded evidence would have been
duplicative. These extra factors are referenced in a 2012 case,
State v. Martin, 2012 WI 96, ¶46, 343 Wis. 2d 78, 816
N.W.2d 270, cited by the majority. Majority op., ¶35. The list
of factors considered under the harmless error test are non-
exhaustive. See State v. Hunt, 2014 WI 102, ¶27, 360
Wis. 2d 576, 851 N.W.2d 434. In any event, the frequency-of-an-
error factor is of limited value when the error was exclusion of
evidence and thus I do not address it. As for the duplicative
factor, the majority concedes that this favors Monahan as it is
undisputed that exclusion of the complete GPS speed evidence was
not duplicative of other admitted evidence. Majority op., ¶48.
6
No. 2014AP2187-CR.rgb
¶75 As to factor (2), Monahan would have used the GPS
evidence to show R.C. drove at high rates of speed. There was
no evidence in the record to that effect. The State did not and
could not present any direct evidence or eyewitness testimony to
disprove Monahan's defense that R.C. was driving her car and
refused to let anyone else drive it. The main evidence
contradicting this defense was Parrott's supposition, bolstered
by the State's closing argument that R.C. never would have
driven so fast on unfamiliar roads. Admitting all the GPS
evidence would have supported Monahan's defense and poked holes
in the State's argument. Applying factor (2) illustrates how
excluding this evidence was harmful.
¶76 Factor (3) looks to the nature of the defense.
Monahan presented contrary expert witness testimony from his
engineering expert, Paul Erdtmann, who reconstructed the
accident. Erdtmann opined that it is impossible, based on the
physical evidence, to discern who was driving at the time of the
crash. Erdtmann refuted each of the factors underlying
Parrott's opinion that Monahan was driving. Erdtmann presented
a photo showing a woman of R.C.'s height could comfortably reach
the controls to operate the same type of car with the driver's
seat in the same position. Another photo showed that a man of
Monahan's height would fit comfortably in the passenger side of
the same type of car with the seat in the same position as the
subject car's passenger seat. Erdtmann offered an explanation
for the major and minor DNA located on the driver's airbag——the
bodies were moving around during the rollover and both could
7
No. 2014AP2187-CR.rgb
leave DNA on the airbag regardless of which seat each occupied.
Moreover, State-witness, Dr. Robert Corliss, a forensic
pathologist who performed R.C.'s autopsy, testified on cross-
examination that, in a rollover accident during which the car's
occupants were not wearing seatbelts and were ejected from the
car, it is not possible to discern whether R.C. was in the
driver's or passenger's seat.
¶77 Monahan also testified in his own defense. He
explained he had no memory of the accident. He remembered
leaving the party with R.C., who was driving him in her car.
She had driven him to the party and she drove him after the
party. He told the jury that he never drove R.C.'s car because
she never let anyone else drive it.
¶78 One eyewitness testified R.C. was driving when the two
arrived at the party. No witness contradicted that testimony.
Two other independent eyewitnesses who were at the party
testified they recalled R.C. driving when she and Monahan left
the party. One remembered Monahan flashing a big smile at her
from the passenger seat as the car drove away. The other
testified that Monahan and R.C. walked by him on the way to her
car and the witness saw R.C. get in the driver side and saw
Monahan in the passenger seat. No witness contradicted that
testimony. A third independent witness testified that R.C.
never let anyone drive her car. No witness contradicted that
testimony.
¶79 The defense case was not weak, and admission of the
excluded GPS evidence certainly would have strengthened it,
8
No. 2014AP2187-CR.rgb
lending credibility to Monahan's testimony and raising
reasonable doubt. Applying factor (3) necessitates the
conclusion that the erroneous exclusion was harmful.
¶80 Factors (4) and (5) each address the State's case and
will be considered together. The State's case was likewise not
weak. Its accident reconstructionist put Monahan in the
driver's seat at the time of the crash. The State presented
Monahan's multiple statements to the effect that he was driving
through live testimony of the eyewitnesses who heard the
statements. These statements consisted of (1) statements at the
scene, (2) statements in the helicopter transporting him to the
hospital, (3) statements at the hospital, and (4) statements
after recovery. First, at the scene:
When emergency personnel found Monahan in a cornfield, he
was unconscious and unrecognizable. When Monahan
regained consciousness, he repeatedly asked "what
happened"; he did not know who he was or how many people
were in the car or where he had been. EMTs repeatedly
asked him who was driving, but received no answer.
Monahan eventually responded, "I was driving, I guess."
The Chief of Police, Richard Moyer, asked Monahan if
there was anyone else in the car and Monahan said he did
not know; when Moyer asked who was driving, Monahan
responded that he did not know.
Sergeant Darrell Morrissey testified that when he asked
Monahan who was driving, Monahan said he did not remember
or did not know. When Morrissey asked Monahan if there
9
No. 2014AP2187-CR.rgb
was anyone else in the car besides R.C., Monahan answered
he was not sure.
Deputy Sheriff Paul Klang testified he asked Monahan if
he was the driver and Monahan replied that he did not
remember. When Klang told Monahan there was a female in
the car, Monahan said, "I probably was driving, then."
Monahan told Klang he did not remember where he was
coming from. Klang also told the jury that he overheard
Monahan say to an EMT or firefighter, "that is the last
time I will drink and drive."
An EMT, who was also a religious minister, testified he
heard Monahan say "I fell asleep" and "I'll never drink
again."
Sheriff Deputy Michael Gorham testified he spoke with
Monahan at the scene while Monahan was lying on a
backboard and being tended to by emergency personnel.
Gorham asked how many people were in the car. Monahan
answered: "It depends who's asking" and subsequently
said that he and "his girlfriend" were in the car. When
Gorham asked who was the driver, Monahan said "I might
have been, I guess."
Gorham again approached Monahan, this time with a digital
tape recorder to get a more definitive statement. When
Gorham asked, "Were you the driver?", Monahan answered,
"Yeah, I guess." Gorham told Monahan a fireman said he
saw Monahan driving the car out of Shullsburg and asked
"so you were the driver?" Monahan replied, "Yeah, I
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guess." When Gorham asked, "You're not BSing or anything
right?", Monahan answered, "I don't think so." The
audio-recording was played for the jury and Monahan can
be heard groaning in pain. Medical personnel interrupted
Gorham's questioning to insert an IV. Monahan expressed
he was in pain. Gorham resumed the questioning, asking
if Monahan could "explain what happened," and Monahan
replied, "No." Gorham pressed, "You don't remember how
the crash occurred?" to which Monahan replied, "My tires
went off the side of the road and I believe it was I lost
control." [sic] When Gorham followed up by asking about
the tires, Monahan asked, "Can we talk tomorrow?"3
¶81 During the flight to the hospital, Monahan told the
flight nurse and medic he remembered what happened——he was
driving and he was wearing his seatbelt. Prior to the flight,
Monahan had been given Fentanyl, a pain medication.
¶82 At the hospital, Monahan signaled to his nurse that he
wanted paper and pencil. He could not speak because he was
intubated. Monahan wrote he remembered the accident——he was
going too fast over a hill and lost control.
¶83 During an interview with a state trooper ten days
after the crash and after Monahan had been released from the
hospital, Monahan said he had "no idea" who was driving at the
time of the crash and he "did not have memory of the crash at
3
No firefighter testified to making the statement to Gorham
and Gorham told the jury he was not able to locate the
firefighter.
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all." Monahan also told the trooper that the car belonged to
R.C. and he had never driven her car. Five months after the
crash, the state trooper interviewed Monahan again. Monahan
told the trooper he still had no recollection of the crash.
Monahan said R.C. was an aggressive, "kind of nuts" driver. The
trooper asked Monahan to give a DNA sample so it could be
compared to physical evidence collected from the car. Monahan
agreed, saying, "It doesn't matter, you know, I wasn't driving."
At the time of this statement, Monahan was still seeing a
neurologist. He was not cleared to return to work until nine
months after the accident.
¶84 The State's case relied on Monahan's statements,
Parrott's reconstruction opinion, and the DNA airbag evidence.
In addition, R.C.'s mother testified during the State's rebuttal
case that R.C. drove as close to the steering wheel as possible.4
Although this evidence is certainly sufficient to convict
Monahan, it is by no means overwhelming. First, Monahan's
statements are far from conclusive. Most could be accurately
described as equivocal. Many of his statements were given
within minutes of a high-speed car crash, which caused serious
injury, including immediate unconsciousness and a later-
4
The actual testimony was: "She would always have her seat
as close up to the steering wheel as she possibly could." And
when shown Erdtmann's photo she said: "The model is much
farther back than [R.C.] would have been."
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diagnosed head injury.5 One of Monahan's statements was given
only after being told he was the driver. Many of these
statements were given while Monahan was in severe pain. His
statement in the helicopter admitting that he was driving was
given at the same time he either lied or mistakenly stated he
was wearing his seatbelt. It could easily be discounted.
¶85 Second, Parrott was not the only reconstructionist to
testify at trial. Monahan's expert refuted Parrott's testimony
in every regard. And, the jury heard that Parrott's report
included false information. Namely, his report said he excluded
R.C. as the driver because lab results analyzing the car's
window fragments did not contain R.C.'s DNA. At trial, Parrott
admitted that this was an error——no glass fragments were ever
tested in this case. Parrott explained this mistake appeared in
his report because he "cut and pasted" it from another report
for a different "who was the driver" reconstruction case; he
inserted R.C.'s name in place of the person from his other case.
Moreover, Parrott's opinion that Monahan was driving was based
on his comparison of Monahan's and R.C.'s shoes to what he
claimed were "little flecks" on the gas and brake pedal. But,
he admitted he was not a footprint expert. He conceded that
Karley Hujet of the Wisconsin State Crime Lab, who performed the
official analysis of the pedals and the shoes, was the footprint
5
Monahan's medical records show he had surgery on his
spleen, was hospitalized for six days, and his injuries included
traumatic shock, lung contusion, fractures to the cervical,
lumbar, and thoracic vertebrae, rib fracture, and a concussion
with loss of consciousness.
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expert. Hujet testified that she could not conclusively say
there was a footwear impression and in comparing the pedals to
the shoes, she could not say who was driving. Parrott told the
jury the reason he could opine that Monahan's shoes were on the
pedals when Hujet could not was because Hujet was bound by
industry standards, which did not apply to him.
¶86 Third, Monahan's expert gave an explanation regarding
the DNA on the airbag, which refuted Parrott's opinion on seat
position and dirt evidence. Parrott's reconstruction theory had
R.C. ejecting from the car before the airbags deployed, leaving
unanswered the question of why the driver's airbag had a second
person's DNA on it.
¶87 Finally, R.C.'s mother's testimony that her daughter
would drive with her seat as close to the steering wheel as
possible cannot prove that R.C. did so while driving her car on
the day of the crash nor can it establish that Monahan was
driving. We simply do not know, and the mother's testimony
alone cannot make the erroneous exclusion of the complete GPS
evidence harmless.
¶88 There certainly are cases in which the State's
evidence is so overwhelming and uncontested that a reviewing
court can say, as a matter of law, the evidentiary error had no
impact. But this is not one of those cases. Factors (4) and
(5) do not demonstrate beyond a reasonable doubt that excluding
the GPS evidence had no impact on the verdict or that the jury
would have convicted Monahan absent the error.
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¶89 Application of the Hunt factors shows that the
erroneous exclusion of evidence in this case was not harmless.
This was a close case. Excluding the complete GPS data
prevented Monahan from introducing evidence to corroborate his
expert's opinion and his defense. At the same time, its
exclusion allowed the State to persuasively argue in favor of
its expert's theory. We do not know which theory a jury
presented with all the GPS evidence would believe. But, its
exclusion, exploited by the State in its closing, creates
reasonable doubt as to whether a rational jury would have found
Monahan guilty absent the error; the State has failed to prove
"beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained." Therefore, the error was
not harmless and Monahan should get a new trial during which he
can present the GPS evidence to support his defense.
III
¶90 The trial court's erroneous exclusion of evidence
prevented Monahan from fully presenting his defense, which is a
constitutional error. A criminal defendant has a Sixth
Amendment right to present his defense. Washington v. Texas,
388 U.S. 14, 18-19 (1967) (discussing criminal defendant's
"right to present a defense, the right to present the
defendant's version of the facts" so the jury can compare to the
State's version to "decide where the truth lies."). "The
evidence the defendant seeks to introduce, however, must be
'both material and favorable to his defense.'" State v. Ward,
2011 WI App 151, ¶16, 337 Wis. 2d 655, 807 N.W.2d 23 (quoting
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United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
The evidence excluded in this case is material and favorable to
Monahan's defense, satisfying both criteria. By excluding this
evidence, the circuit court violated Monahan's right to present
a defense. A new trial would give him a fair opportunity to
defend against the State's accusations. Chambers v.
Mississippi, 410 U.S. 284, 294 (1973) ("The right of an accused
in a criminal trial to due process is, in essence, the right to
a fair opportunity to defend against the State's accusations.").
¶91 The trial court committed a constitutional error in
depriving the jury of evidence material to Monahan's defense and
the majority errs in denying Monahan a new trial in which he
could present it. Because it is far from clear beyond a
reasonable doubt that a rational jury would have found Monahan
guilty if it had heard the excluded evidence, I respectfully
dissent.
¶92 I am authorized to state that Justices SHIRLEY S.
ABRAHAMSON and ANN WALSH BRADLEY join this dissent.
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